Cathy M. Djuric v. Levy & Dubovich, and Judith A. Levy-Adler and Debra Lynch Dubovich (mem. dec.)
45A05-1707-CC-1699
| Ind. Ct. App. | Nov 16, 2017Background
- In Oct. 2009 Djuric signed a written Attorney Fee Agreement with Levy & Dubovich (Levy‑Adler signed) agreeing to pay $250/hr and a $5,000 retainer; the contract required any modification to be in writing.
- Representation was contentious; Levy‑Adler notified Djuric she would withdraw in July 2011, filed a motion to withdraw Aug. 5, 2011, and the court granted withdrawal Aug. 9, 2011; Djuric obtained new counsel and did not appeal the withdrawal or the final dissolution order.
- The Law Firm sued Djuric Jan. 16, 2015 for unpaid fees (about $30,000); Djuric counterclaimed Feb. 24, 2015 asserting breach, abandonment, and legal malpractice and alleged oral promises that fees would be collected from her husband.
- The Law Firm moved for summary judgment; the trial court granted summary judgment for the Law Firm on its fee claim and for the Firm and attorneys on Djuric’s counterclaim/third‑party complaint, awarding $30,252.95 plus interest.
- The trial court held (1) Djuric failed to show a valid oral modification because any oral promise lacked consideration and (2) Djuric’s legal malpractice claims were time‑barred by the two‑year statute of limitations and were not saved by Trial Rule 13(J).
Issues
| Issue | Plaintiff's Argument (Djuric) | Defendant's Argument (Law Firm) | Held |
|---|---|---|---|
| Whether the written fee agreement was orally modified so Djuric would not be liable for fees | Levy‑Adler orally promised she would obtain fees from Djuric’s husband, relieving Djuric of responsibility | The contract required written modifications; even if an oral modification is possible, any oral promise lacked consideration | No enforceable oral modification; summary judgment for Law Firm upheld |
| Whether Djuric’s continued representation constituted consideration for an oral modification | Continuing representation was sufficient consideration because Djuric agreed to remain as client | Continued performance of an existing duty cannot supply new consideration for a modification | Continuing the same services is not new consideration; modification invalid |
| Whether Djuric can challenge the propriety of Levy‑Adler’s withdrawal after the court approved it | Withdrawal was improper/abandonment and supports malpractice/breach claims | Djuric had opportunity to challenge the withdrawal and did not; collateral attack on final withdrawal order is impermissible | Withdrawal order precludes relitigation; not a proper basis to defeat fee claim |
| Whether Djuric’s malpractice claims are timely or saved by Trial Rule 13(J) when asserted as counterclaims | Rule 13(J) permits late counterclaims that arise from same transaction and can diminish/defeat the plaintiff’s claim | Malpractice claims seek affirmative relief and could have been brought independently; they do not defeat the fee claim | Malpractice claims are time‑barred; Rule 13(J) does not revive them |
Key Cases Cited
- AM Gen., LLC v. Armour, 46 N.E.3d 436 (Ind. 2015) (clear contract terms are enforced and extrinsic evidence is unnecessary)
- Ryan v. Ryan, 972 N.E.2d 359 (Ind. 2012) (contract interpretation principles regarding unambiguous terms)
- Sees v. Bank One, Ind., N.A., 839 N.E.2d 154 (Ind. 2005) (a written modification clause does not necessarily preclude an oral modification)
- Williams v. Tharp, 914 N.E.2d 756 (Ind. 2009) (summary judgment standard and material/genuine fact definitions)
- Hughley v. State, 15 N.E.3d 1000 (Ind. 2014) (application of summary judgment standard)
- Hinkel v. Sataria Distrib. & Packaging, Inc., 920 N.E.2d 766 (Ind. Ct. App. 2010) (continued performance of an existing duty is not adequate consideration for contract modification)
- Delacruz v. Wittig, 42 N.E.3d 557 (Ind. Ct. App. 2015) (Trial Rule 13(J) does not toll limitations for counterclaims seeking affirmative relief)